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ASSIGNMENT AND ASSUMPTION OF ACQUISITION AGREEMENT
This Assignment and Assumption of Acquisition Agreement (the "Agreement")
made and entered into as of April 1, 1998, among Softline Limited, a South
African Company ("Softline") Softline Holdings (Pty) Limited, a South African
Company ("Softhold"), Triple-S Computers (Pty) Limited ("Triple-S") Divergent
S.A. (Pty) Limited, a South African Company ("Divergent S.A.") and the
shareholders reflected on attached Exhibit A (the "Shareholders").
RECITALS
A. Softline, Softhold and Triple-S entered into an Acquisition Agreement as
of April 1, 1998 ("Acquisition Agreement"), a copy of which is attached as
Exhibit B, under the terms of which, inter alia, Softline and Softhold purchased
from Triple-S all of assets of the Business conducted by Triple-S, under the
terms of the Acquisition Agreement.
B. Under the terms of the Acquisition Agreement, Softhold was entitled to
designate a nominee as the purchaser of the Assets and the Business.
C. Softline and Softhold designated Divergent S.A. as their respective
nominee to acquire all their respective interests under the Acquisition
Agreement as more fully set forth in this Agreement.
1. DEFINITIONS. All capitalized terms used in this Agreement shall have the
meaning ascribed such terms in the Definitions Section (Article 2) of the
Acquisition Agreement, unless otherwise defined in this Agreement.
2. DESIGNATION OF NOMINEE. Softline and Softhold hereby designate, appoint
and nominate Divergent S.A. as their respective nominee to purchase, acquire and
take delivery of all of the sale Assets and the Business purchased under the
Acquisition Agreement.
3. SALE LIABILITIES. For the purposes of this Agreement and the Acquisition
Agreement, the Sale Liabilities assumed by Divergent S.A. shall include only the
liabilities set forth on the Business Financial Statements, including Triple-S's
overdraft at Nedbank Cape Town, trade creditors in the amount specified on the
business's financial statements, and all amounts owing in respect of leased
assets, and no other liabilities or claims of any nature whatsoever.
4. SUSPENSIVE CONDITIONS. This Agreement is suspensive and conditional upon
Divergent S.A. and the transaction qualifying as "an income earning activity"
within the meaning of Section 1l(e)(i)(aa) of the VAT Act.
5. PERFORMANCE. Triple-S and the Shareholders shall perform each of their
obligations, agreements, representations and warranties as specified under the
Acquisition Agreement to
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Divergent S.A. as fully and to the same extent as if Divergent S.A. had
executed the Acquisition Agreement in the place of Softline and Softhold. Such
obligation shall include, without limitation, the following:
5.1. Triple-S and the Shareholders hereby jointly and severally
warrant and represent that the warranties set forth in Article 12 of the
Acquisition Agreement were true and correct upon execution of the Acquisition
Agreement and will be true and correct upon execution of this Agreement and the
Closing Date.
5.2. Triple-S and the Shareholders shall jointly and severally perform
and be obligated under each of the indemnity provisions provided in the
Acquisition Agreement and by application of law, including without limitation
Article 17 of the Acquisition Agreement.
6. ADDITIONAL CONTRACTS. Triple-S and the Shareholders warrant and
represent the following contracts have been entered into, of full force and
effect, and are enforceable in accordance with their terms:
6.1. The Lease in the form of attached Exhibit C.
6.2. The Service Contract of Xxxxxx Xxxxx Xxxxxx Xxxx in the form of
attached Exhibit D.
The foregoing contracts have not been amended and are nor terminable by any
party except in accordance with the terms of such contract.
7. SHAREHOLDERS' OBLIGATIONS. The Shareholders hereby reaffirm all of their
obligations under the Acquisition Agreement including, without limitation,
Article 14 thereof. The Shareholders, by their signatures to this Agreement
hereby jointly and severally bind themselves into and in favor of Divergent S.A.
as sureties for and co-principle debtors in solidum with Triple-S for due and
punctual performance by Triple-S of all of the obligations, covenants,
warranties sad representations set forth in the Acquisition Agreement and this
Agreement.
8. NO MODIFICATION. Except as expressly provided for in this Agreement, the
Acquisition Agreement shall not be amended, modified or altered in any respect
whatsoever nor shall any party be relieved of their obligations under the
Acquisition Agreement.
9. ATTORNEYS FEES. In the event of any litigation, arbitration mediation,
or other proceeding ("Proceeding") is initiated by any party(ies) against any
other party(ies) to enforce, interpret or otherwise obtain judicial or
quasi-judicial relief in connection with this Agreement, the prevailing
party(ies) in such Proceeding shell be entitled to recover from the unsuccessful
party(ies) all costs, expenses, actual attorney's and expert witness fees,
relating to or arising out of (c) such Proceeding (whether or nor such
Proceeding proceeds to judgment), and (d) any post-judgment or post-award
proceeding including without limitation one to enforce any judgment or award
resulting from any such Proceeding. Any such judgment or
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award shall contain a specific provision for the recovery of all such
subsequently incurred costs, expenses, actual attorney's and expert witness
fees.
10. ENTIRE AGREEMENT. This Agreement may not be amended except by a written
agreement executed by the party to be charged with the amendment.
11. NOTICES. All notices, consents, waivers, and other communications under
this Agreement must be in writing and will be deemed to have been duly given
when (a) delivered by hand (with written confirmation of receipt), (b) sent by
telecopier (with written confirmation of receipt), provided that a copy is
mailed by registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
party may designate by notice to the other parties):
Softline Holdings (Pty) Limited
x/x Xxxx Xxxxxxx
00 Xxxxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxxx 00
Xxxxxxx
Fax (000) 000-0000
Softline Limited
00 Xxxxxxxx Xxxxxxxx
Xxxxxxxx Ext. 13
Kramerville 2144
Fax: (000) 000-0000
Triple-S Computers (Pty) Limited
BDO Xxxxxxx Xxxxxxx
0xx Xxxxx
Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx Xxxx 8001
Fax: (011) ###-##-####
Divergent S.A. (Pty) Limited
Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxx Xxxxxxxx
XXX Xxxxxx 0000
Xxxxxxxxx
Fax No.:______________
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with copy to: Xxxxxxx Xxxx Seidenwurm & Xxxxx, LLP
000 X Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
12. FURTHER ASSURANCES. The parties agree (a) to furnish upon request to
each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the other
party may reasonably request for the purpose of carrying our the intent of this
Agreement and the documents referred to in this Agreement.
13. WAIVER. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any party
in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right, power,
or privilege will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law, (a) no claim or right arising out of
this Agreement or the documents referred to in this Agreement can be discharged
by one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to raise further action without notice or demand as provided in
this Agreement or the documents referred to in this Agreement.
14. SEVERABILITY. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
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15. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
N WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the date first written above.
Softline Limited Softline Holdings (Pty) Limited
A South African Company A South African Company
By:_______________________ By:_______________________
Triple-S Computers (Pty) Limited Divergent S.A. (Pry) Limited
A South African Company A South African Company
By:_______________________ By:_______________________
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